United States v. Michael R. Levy , 390 F. App'x 726 ( 2010 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT AUG 02 2010
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES OF AMERICA, No. 09-50656
Plaintiff - Appellee, D.C. No. 2:09-cr-00739-JSL-1
v.
MEMORANDUM*
MICHAEL R. LEVY,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
J. Spencer Letts, District Judge, Presiding
Argued and Submitted July 12, 2010
Pasadena, California
Before: FARRIS, HALL, and SILVERMAN, Circuit Judges.
Michael R. Levy appeals from a 36-month sentence imposed after he waived
indictment and pled guilty to the sole count of the information—subscribing to a
false tax return in violation of 26 U.S.C. § 7206(1)—based on his underreporting
of gross receipts from his fine art gallery by a total of $3,101,247 for tax years
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
2003 through 2007. Pursuant to the plea agreement, Levy waived his right to
appeal any sentence imposed by the district court, including any order of restitution
and the manner in which the sentence was determined, so long as the sentence was
within the applicable statutory maximum and constitutional. He nevertheless
appeals, contending that his due process rights were violated because the
sentencing judge was biased against him, failed to address the sentencing factors in
18 U.S.C. § 3553, did not properly apply the Sentencing Guidelines, relieved the
government of its burden of proof as to tax loss, and failed to explain why it
imposed the statutory maximum 36-month sentence.
The district court had jurisdiction pursuant to 18 U.S.C. § 3231. We have
jurisdiction pursuant to 28 U.S.C. § 1291.1 We affirm.
Levy’s claim of judicial bias is based primarily on an ex parte contact Judge
Letts allegedly had with the Assistant United States Attorney (“AUSA”) on March
1
Upon entry of the amended judgment on December 21, 2009, Levy was
ordered to pay restitution in an amount to be determined at a later hearing. No
specific amount of restitution was ordered at the hearing on March 11, 2010, which
concluded with Judge Letts’s self-recusal, or at any subsequent hearing after the
matter was reassigned. This failure to specify an amount of restitution does not
affect our jurisdiction, see Flanagan v. United States, 465 U.S. 259, 263 (1984),
and 18 U.S.C. § 3664(o), but it does raise the question whether we must remand
for further proceedings to determine the proper amount of restitution. At oral
argument before this court, the government conceded that Levy has paid the
amount of restitution to which the parties stipulated, and no further proceedings are
necessary. Thus, we consider the matter of restitution to be finally resolved.
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9, 2010, two days before a hearing on the parties’ proposed stipulation regarding
restitution, as reported by the AUSA to defense counsel. Although he never raised
any claim of judicial bias or moved for recusal in the proceedings below, Levy
further contends that certain comments Judge Letts made at sentencing on
December 14, 2009, and during the restitution hearing on March 11, 2010,
demonstrate bias against him.
We have recognized “‘a presumption of honesty and integrity in those
serving as adjudicators.” Larson v. Palmateer, 515 F.3d 1057, 1067 (9th Cir.
2008) (quoting Withrow v. Larkin, 421 U.S. 35, 47 (1975)). Only in the rarest of
cases does a judge’s conduct during the course of the proceedings constitute a basis
for recusal. United States v. Holland, 519 F.3d 909, 914 (9th Cir. 2008). Claims
of judicial bias that are not raised in the district court are reviewed under the “plain
error” standard. United States v. Bosch, 951 F.2d 1546, 1548 (9th Cir. 1991).
Under this standard, reversal is an exceptional remedy which will be invoked
“‘only when it appears necessary to prevent a miscarriage of justice or to preserve
the integrity and reputation of the judicial process.’” Id. (quoting United States v.
Bustillo, 789 F.2d 1364, 1367 (9th Cir. 1986)). After careful review of the record,
we conclude that Levy has not made a showing of judicial bias that would require
us to vacate his sentence.
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The alleged ex parte telephone conversation, if it occurred as reported, was
improper. See ABA Model Code of Jud. Conduct R. 2.9 (2007); U.S. Ct. App. 9th
Cir. Jud. Miscon. R. 3(h)(1)(C) (cognizable misconduct includes “having improper
discussions with parties or counsel for one side in a case”). But the alleged ex
parte contact occurred three months after Judge Letts ordered imposition of the
statutory maximum sentence, and could not have affected his decision on that
issue. Moreover, the statements Judge Letts allegedly made to the AUSA—most
of which pertained to the procedures for determining an appropriate amount of
restitution—do not reflect such a high degree of favoritism to the government or
antagonism to the defendant that would make fair judgment impossible. See
Liteky v. United States, 510 U.S. 540, 555 (1994).
Although he admits he did not object to any of Judge Letts’s comments at
sentencing, Levy contends that it was only in retrospect, as a result of the
emotional exchange that occurred on March 11, 2010, when defense counsel
confronted Judge Letts about the alleged ex parte conversation with the AUSA,
that the sentencing judge’s bias became manifest. We reject this claim. When read
in context, Judge Letts’s comments during the sentencing hearing were for the
most part expressions of dismay directed at the prosecutor for undercharging the
case—which involved the filing of five separate tax returns understating Levy’s
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gross receipts over a five-year period by a total of over $3 million (or by
approximately 72%), and multiple sophisticated financial maneuvers to “structure”
his bank transactions, apparently to conceal the proceeds from sales of numerous
pieces of fine art. Judge Letts’s critical comments about both the Guidelines range
and the stipulated amount of restitution were focused on his disagreement with
both parties’ positions on the law and their failure sufficiently to document their
calculations of tax loss. Such comments do not overcome the presumption of
honesty and integrity in those serving as adjudicators, Larson, 515 F.3d at 1067,
nor do they require recusal. See United States v. Wilkerson, 208 F.3d 794, 797-99
(9th Cir. 2000) (district court’s commentary on legal issues, and statements of
displeasure at prosecution’s failure to bring additional charges supported by
defendant’s own admissions, do not establish bias requiring recusal). To the extent
any of Judge Letts’s comments suggested antagonism towards Levy, they were
merely his opinions that Levy’s admitted criminal conduct was profoundly
dishonest and far more serious than the charging document would suggest; they did
not show any wrongful or inappropriate predisposition against Levy or in favor of
the government. Id.; see also Liteky, 510 U.S. at 550-51, 555.
Levy’s remaining claims of sentencing error are barred by the appeal waiver.
We have no doubt that Levy’s waiver of his right to appeal the sentence imposed
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was knowing and voluntary when made, and thus valid and enforceable, see United
States v. Bibler, 495 F.3d 621, 623-24 (9th Cir. 2007), and that the claimed
procedural errors fall within the scope of the waiver of his right to appeal “the
manner in which the sentence was determined.” See United States v. Vences, 169
F.3d 611, 612-13 (9th Cir. 1999) (district court’s failure to state reasons as required
by 18 U.S.C. § 3553 did not render sentence “illegal,” and appeal waiver barred
consideration of that claim of error).
AFFIRMED.
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